As a pretermitted child, you likely have legal rights to an estate inheritance. Here’s a simple guide to help you get started in the process to get your inheritance.
A pretermitted child simply is a child who was born to a decedent after the decedent’s will or trust was created or amended. As long as there is no estate planning document created after the child was born, the child may file what’s called a Petition to Determine Heirship to establish the child’s right to his or her intestate share of the decedent’s estate. California Probate Code Section 21620 outlines the rights of a pretermitted or omitted child.
Generally, it’s clear and obvious when a child is pretermitted. In fact, in many of these situations the fact the child was omitted may not even be disputed or lead to a dispute about what the child is entitled to. This is because in most situations it’s simply a case of a will or trust pre-dating the child’s birth, and not having been updated after the birth. If the child’s pretermitted status is disputed, then the omitted child simply needs to file a Petition to Determine Heirship with their county probate court and establish that he or she was born to the decedent after the estate plan was created. Probate litigation counsel should be contacted early to assert the child’s rights, which can often help avoid costly and drawn out legal proceedings.
Many situations are complicated by the fact that the omitted child was unknown to the decedent’s spouse and perhaps even his or her other children – e.g. a child that was born out of wedlock, known to the decedent but unknown to the decedent’s spouse. These children often are omitted but have the same inheritance rights as the decedent’s other children. These “unknown children” scenarios are factually intense and require analysis of the factual and legal merits to determine whether the child may be able to recover. Counsel should be consulted early to determine the best course of action.
Under most state probate law, a pretermitted or omitted child will receive the same amount they would have had there been no will or trust – also referred to as a “statutory share” or “intestate share.” For example, if they are the only child and there is a also a surviving spouse, the child may receive up to 50% of the estate assets, and the spouse should receive the other 50%.
The first step is consult an estate litigation attorney who can examine your claim and advise you on how best to proceed, whether that is contacting the estate administrator or trustee, or proceeding straight to court. If court is the best next step, your attorney will help prepare and file in the decedent’s county probate court a Petition to Determine Heirship. This notifies the county probate court charged with overseeing the administration of the decedent’s affairs, as well as the decedent’s other heirs, that you are claiming a share of the decedent’s estate. Filing the petition will begin the legal process and give you a mechanism to secure an amicable resolution of your claim – i.e. settlement – or to secure a judgment after trial. This process should be handled in consultation with a probate lawyer to ensure the best result.
It’s important to consult with a probate litigation attorney as soon as you learn of the decedent’s passing to ensure your claim is filed timely and before the decedent’s estate is distributed to his or her other heirs and beneficiaries. If you file your claim after the estate is already distributed, you are going to have a harder time collecting, it’s going to take a lot longer, and it’s going to cost you a whole lot more.
In most states, including California, a child can be legally disinherited, and may have no rights to any estate assets. If you’ve been disinherited, you may have a claim to contest or challenge your disinheritance. For example, if the disinherited child feels they were disinherited due to the undue influence of the decedent’s spouse, another child, or a third-party like a caregiver, then the disinherited child has legal grounds to contest the will. These are highly emotional and complicated situations. If you have any questions about being disinherited, please call for a free consultation.
Generally, the sooner you contact a probate litigation attorney the better. Getting your rightful assets, as a pretermitted child, is much faster if everything is “figured out” before any estate assets are distributed to heirs and beneficiaries. It takes longer, and is more costly, if the pretermitted child’s inheritance has to be “taken back” from other heirs and beneficiaries who have already received their estate distributions.
Probate litigation can be expensive, but many lawyers, like RMO, offer alternative fee arrangements, including contingent fee and hybrid fee arrangements, if you cannot afford or do not want to pay hourly. Don’t let fear that you “can’t afford it” deter you from taking advantage of a consultation with a probate litigation attorney who may be able to help you, and in an affordable way.
We recommend finding an experienced probate litigation attorney familiar with the county probate court in the county where the decedent lived. For example, if the decedent lives in Los Angeles, we recommend working with a probate litigation lawyer in Los Angeles. A Los Angeles probate litigation lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.
At RMO, we help people like you address issues like these every day.
RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com